Secretary of State for the Home Department v Manoj Karsandas Bhanushali

An immigration appeal must be decided by reference to the Immigration Rules in force and applicable when the application was decided. The tribunal must identify the actual reason for refusal, the relevant rule and any commencement or transitional provision.

Pankina v SSHD [2010] EWCA Civ 719 does not permit an Immigration Judge to disregard mandatory requirements of the Rules merely because their application is considered unfair. An amendment barring reuse of a Confirmation of Acceptance for Studies reference could not justify a refusal before its commencement date, particularly where transitional provisions preserved the earlier Rules.

The claimant, an Indian national with leave as a student, applied to remain as a Tier 4 (General) Student Migrant. The Secretary of State refused the application because the Confirmation of Acceptance for Studies reference number had allegedly already been used. The First-tier Tribunal allowed the claimant’s appeal, despite finding that he could not meet the Rules, on its understanding of Pankina v SSHD [2010] EWCA Civ 719.

The Secretary of State appealed. The Upper Tribunal had to decide whether the First-tier Tribunal had erred in law and whether, under the Rules and the commencement arrangements for HC 908, reuse of the reference number invalidated the claimant’s application.

1. The Secretary of State’s appeal was allowed. The First-tier Tribunal’s determination contained an error of law and was set aside. The Upper Tribunal re-made the decision by allowing the claimant’s underlying appeal under the Immigration Rules.

2. The First-tier Tribunal had erred by treating compliance with the Rules as effectively irrelevant once it considered refusal unfair. Pankina v SSHD [2010] EWCA Civ 719 gave no authority for that approach. An Immigration Judge must determine whether the appellant satisfies the applicable Rules; perceived unfairness does not itself permit departure from their requirements.

3. On the correct Rules, the refusal was unsound. Paragraph 245ZX required the claimant to obtain 30 points under Appendix A. The relevant Confirmation of Acceptance for Studies had been issued within six months of the application. There was no suggestion that the remaining conditions in paragraphs 116 to 120 were unmet.

4. HC 908 inserted paragraph 116(ea), which prevented reuse of a Confirmation reference number following an approved or refused application. That amendment took effect only on 21 April 2011. Its transitional provision also required an application made before that date, but undecided then, to be decided under the Rules in force on 20 April. The claimant’s application was refused on 4 April 2011. The decision-maker therefore wrongly applied an amendment which neither existed nor applied to the case.

5. The case illustrates the need, in points-based-system cases, to identify precisely the refusal ground, the governing Immigration Rules and the applicable commencement provisions.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal determination for error of law, and re-made the decision by allowing the claimant’s appeal under the Immigration Rules.

• First-tier Tribunal: Immigration Judge McIntosh had allowed the claimant’s appeal. No citation was stated in the judgment.